05 December 2009

A we head towards Christmas it is 'slow news season', evident in an announcement by The Age of 'Biometric tests for asylum seekers'.

A scheme to gather biometric data from asylum seekers is being introduced in an effort to crack down on fraud and help identify those with overseas criminal records.

Starting this week asylum seekers in Melbourne and Sydney are being asked to provide an image of their face and a scan of their fingerprints as part of a six-month voluntary trial. The data will be checked against records in the United States, Britain, Canada and New Zealand in a search for multiple identities and criminal backgrounds.

The scheme has been criticised by refugee and privacy advocates.

The defences and criticisms use the trusty Casablanca Model (ie "round up the usual suspects").

David Vaile of the Australian Privacy Foundation is quoted as worrying about the potential for biometric data to fall into the wrong hands when it is sent overseas: "The people who are implementing it are basically outsourcing the risks to the data subjects while retaining the benefits for themselves". Quite; that's usually what offshoring is about.

Refugee advocate Pamela Curr of the Asylum Seeker Resource Centre is reported as attacking the program, saying - to use the Age's phrase - that "overwhelmingly people who arrived in Australia were honest in identifying themselves and posed no security risk".

Immigration minister Chris Evans claims that "This initiative will improve our current processes for identity-checking and assessing people's claims for protection under the Refugees Convention". Use of biometrics has "already yielded results": "in one case, a fingerprint match revealed an asylum seeker was known by several different names in another country, and had numerous criminal convictions".

There's more subtlety and more bite in Blackstone's Guide to The Identity Cards Act 2006 (Oxford: Oxford Uni Press 2006) by John Wadham, Caoifhionn Gallagher & Nichole Chrolavicius, which I'm reading at the moment after returning from the law conference in Brisbane.

The Australian Institute of Criminology (AIC) has released an 86 page Technical & Background Paper(PDF) by Colleen Bryant & Matthew Willis on Pornography awareness: A process of engagement with Northern Territory Indigenous communities.

The Paper reports on a review by the AIC for the Northern Territory Justice department of the latter's 'campaign strategy' regarding a "media classification awareness and education campaign for Indigenous communities". The campaign dates from 2007, following strong expressions of concern regarding sexual abuse of children in Indigenous communities within the Territory, the exposure of Indigenous children to adult content and suggestions that there were links between consumption of pornography and sexual abuse of children. The Justice Department undertook a series of "consultations", in particular with Indigenous men, that were envisaged as providing -

input into the messages to be delivered through the campaign, the appropriate target audiences, critical success factors, risks and sensitivities, and the development of a communications strategy.

The campaign? It featured "workshops, flipcharts and facilitated discussions" - fortunately people seem to have resisted lingo such as "iterative discourse" - to communicate three key messages to Indigenous communities -

• It is important to know and understand the classification system that operates in Australia for film and literature and responsibilities under that system.
• It is illegal for persons under 18 years to have access to or view any R18+ or X18+ rated film or printed material that has a restricted classification and there are penalties for illegal access. This material is considered harmful for people under the age of 18 years.
• X18+ rated material and Category 1 and Category 2 Restricted publications are banned in proscribed communities (as declared by the Federal Minister for Family & Community Services).

Workshops also sought to raise parental awareness of responsibility to protect children from exposure to pornography, "empower participants to enact these responsibilities through information and awareness", provide an opportunity for discussion of "issues regarding access to pornography and its potential harms, including problematic sexual behaviours that might occur in communities as a result of children’s exposure to pornography" and share strategies regarding exposure of children to adult content.

When read between the lines the Paper is deeply depressing. The authors note that its principal purpose is -

to examine the process through which NT Justice developed the education campaign, engaged with Indigenous communities and to consider whether the campaign had the capacity to meet its objectives and was in accordance with existing good practice guidelines. The review does not evaluate the effectiveness of the program to achieve educational outcomes, or attempt to explain if this program has contributed to behavioural changes with respect to the regulation of pornography or other sexual behaviours. Rather it provides an opportunity to examine how an education campaign might be developed and delivered in the context of remote Indigenous communities and how future community-oriented campaigns might benefit from the NT Justice experience.

Changing behaviour in Indigenous communities will be more difficult than appraising NT Justice's methodology for creation of an education campaign.

The BBC site reports another example of people making money the old-fashioned (ie DIY) way.

"Thousands of pounds" - actually not that many - "of fake £1 coins were uncovered at a counterfeiting factory during a raid on a farm in Kent", with "coin-making paraphernalia" being found hidden in a concealed room behind wooden panelling at Tonge Corner Farm, Tonge. The "concealed room" - one wonders whether concealment was more elaborate than a cupboard pushed in front of a door - is a nice change from the colour photocopier in the attic, coin press in the basement or stencil on the kitchen table.

Alleged coiners Michael Silk (70) and brother-in-law Paul Bart (65) are reported as denying production of "fake coins"; Silk's son Stephen (49) has pleaded guilty to the charge of counterfeiting and having counterfeiting materials. The elder Silk and Bart also deny having counterfeiting materials (including a hydraulic machine press) and possessing counterfeit coins with a view to distributing them as genuine.

His Majesty the King of Albania; the President of the German Reich; the President of the United States of America; the Federal President of the Austrian Republic; His Majesty the King of the Belgians; His Majesty the King of Great Britain, Ireland and the British Dominions beyond the Seas, Emperor of India; His Majesty the King of the Bulgarians; the President of the National Government of the Republic of China; the President of the Colombian Republic; the President of the Republic of Cuba; His Majesty the King of Denmark; the President of the Polish Republic, for the Free City of Danzig; His Majesty the King of Spain; the President of the French Republic; the President of the Hellenic Republic; His Serene Highness the Regent of the Kingdom of Hungary; His Majesty the King of Italy; His Majesty the Emperor of Japan; Her Royal Highness the Grand Duchess of Luxemburg; His Serene Highness the Prince of Monaco; His Majesty the King of Norway; the President of the Republic of Panama; Her Majesty the Queen of the Netherlands; the President of the Polish Republic; the President of the Portuguese Republic; His Majesty the King of Roumania; His Majesty the King of the Serbs, Croats and Slovenes; the Central Executive Committee of the Union of the Soviet Socialist Republics; the Swiss Federal Council; the President of the Czechoslovak Republic

His Serene Highness the Regent of the Kingdom of Hungary? The King of Albania? Thou thy worldly task hast done, Home art gone, and ta'en thy wages; Golden lads and girls all must, As chimney-sweepers, come to dust.

The Act, as one might expect after several centuries of state preoccupation, is polished and systematic. Section 6 provides that "A person shall not make, or begin to make, counterfeit money or a counterfeit prescribed security" (Penalty: imprisonment for 14 years). Knowingly uttering counterfeit money attracts a penalty of 12 years (s 7); possessing counterfeit money without a reasonable excuse attracts a penalty of 10 years (s 9).

Section 11 provides that a person shall not make or mend, or begin or prepare to make or mend; buy, sell, receive or dispose of, or offer to buy, sell, procure or dispose of; or have in his or her possession; a machine, engine, tool, plate, die or other instrument that, to his or her knowledge, has been used, has been adapted for use, or is intended for use, in, or in connection with, the making of counterfeit money.

Since the passing of 5 & 6 Vict. c. 38, which first excluded from the jurisdiction of Courts of Quarter Sessions offences against the Sovereign's title, prerogative, person or government, or against either House of Parliament, it appears to have been taken for granted that coinage offences were triable at Quarter Sessions, subject to any particular exclusion depending upon the nature of the penalty imposed. It may be conceded that the nature of the power to coin money, as well as the history of coinage offences, gives ground for the contention that they are all offences against the prerogative in this sense that, although offences provided by statute, the statutory provisions creating them are designed to protect the prerogative.

To coin money and use it as currency was an exercise of the prerogative power of the Crown. From early times the making of counterfeit money was considered treason at common law. Such offences were regarded, "not as mere frauds fraught with grave harm to the community, but also and chiefly as the invasion of a specially royal right which our Kings had jealously guarded, and any tampering with the King's image and superscription on seal or coin was assimilated to an attack upon his person" (Pollock and Maitland, History of English Law (1895), vol. 2, p. 503). Counterfeiting the King's money was expressly included in the statute of Edward III., 25 Edw. III., stat. 5, c. 2.

Fortunately we've moved on from Edward Rex and don't chop off the hands of coiners or pour boiling lead down their throats.

'Parental Intellectual Disability and Child Protection' (Issues Paper 31, Australian Institute of Family Studies) by Alister Lamont & Leah Bromfield considers parental intellectual disability and the common risk factors associated with child abuse and neglect in order to understand if and why parents with intellectual disability are at heightened risk of abusing or neglecting their children.

The authors note that parents with intellectual disabilities (aka "mental retardation", "developmental disabilities", "learning disabilities" and "learning difficulties") represent 1-2% of all parents in Australia. However, they are over-represented in child protection and legal proceedings, with parental intellectual disability a characteristic in 12.5% of cases reviewed by the Victorian Child Death Review Committee in 2007-08 and Victorian child protection cases in which a parent had an intellectual disability being "almost twice as likely to be substantiated, and more than three times more likely to be re-substantiated than cases where parents did not have an intellectual disability". A 2000 review of 285 court files in two children's courts in New South Wales found that 8.8% of cases featured a parent with an intellectual disability. That over-representation is evident in other jurisdictions, with a UK study in 2000 for example finding that 15.1% of child protection cases before two English family courts featured a parent with learning difficulties.

Research suggests factors contributing to over-representation of parents with intellectual disability in child protection include discrimination, prejudice and a lack of support services.

The Lamont & Bromfield paper discusses key issues associated with parental intellectual disability and child protection, including definitions of intellectual disability; whether there is a link between parental competence and intellectual disability; risk factors for abuse and neglect (and whether or not parents with an intellectual disability experience higher rates of these problems); and the role of support services in assisting parents with intellectual disability.

'Rape mythology and the criminal justice system', a new study by Jessica Kennedy, Patricia Easteal & Caroline Taylor examines sexual assault sentencing and judicial comments from a sample of judgments in Victoria (mostly in 2008).

It explores differences in sentencing, focusing on the relationship between the perpetrator and the victim. The analysis suggests that although judges are demonstrating a better understanding of the reality of sexual assault in their discussion of mitigating and aggravating variables, that awareness is not translating into sentences.

That research is significant because although there has been substantial reform to Victorian sexual assault law and legal processes, the only way to ensure the reform is as effective and progressive as claimed is to test implementation through an empirical analysis.

The authors conclude that -

This study provides preliminary support for previous findings that show a relationship between dominant negative stereotypes and sentencing that is a consequence of the process and decision-making behind sentencing that is subject to judicial discretion. This relationship is further compounded by research that suggests judges are subject to influence by rape and sexual assault mythology. This study considered a small sample with preliminary analyses to test if the relationship between the offender and victim appears to affect sentencing. While it is evident that judges have an increased awareness of the severe and enduring effects of rape by a known assailant, they remain reluctant to apply this to sentencing, resulting in sentences that contradict accompanying judicial commentary. As predicted, longer sentences are given where the offender is unknown to the victim and where some level of violence accompanies the rape. While a prior sexual relationship between victim and offender is no longer viewed as a mitigating variable in sentencing, neither is relationship seen to aggravate the crime. Further, while breach of trust appears to be given significant weight when sentencing cases of intrafamilial sexual assault, it is not applied in incidents of partner or ex-partner rape.

... While judges may articulate an increased awareness of the effects of various types of sexual assault, and acknowledge aggravating factors such as breach of trust, this awareness is either not translating into sentences or it is being balanced by the emphasis of other mitigating factors.

Note that the author of this blog is a colleague of Dr Easteal and Ms Kennedy.

The Commonwealth has meanwhile released reports regarding the 'National Community Attitudes towards Violence against Women Survey 2009'.

The reports include findings regarding community attitudes towards violence against women, notably

+ perceptions of what constitutes domestic violence, sexual violence and sexual harassment; + the relationship between attitudes towards violence against women and attitudes towards gender equality; + understanding of the consequences and harms caused by violence;+ beliefs regarding whether violence against women is justifiable or excusable; + myths and beliefs about victims and offenders; + and awareness of community education and the impact of campaign advertising.

Copyright & Liability

Statements in this blog are my own, rather than that of the University of Canberra.

The text and images are protected under Australian and international copyright and trade mark law. The blog does not represent legal advice. It is for informational purposes only; publication does not create an attorney-client relationship and nothing on this blog constitutes a solicitation for business.

The author pleads guilty to charges of irreverence, irony, indignation and honestly-held opinion.